A man, his truck and feds’ ‘profit’

Express-News Editorial Board

Published 4:11 pm, Monday, October 10, 2016

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A recent Express-News article by Jason Buch — examining the case of Gerardo Serrano, his truck and federal asset forfeiture generally — reported that the Treasury and Justice Departments seized more than $5 billion in assets last year. Serrano’s truck was seized after agents found five bullets in it. less

A recent Express-News article by Jason Buch — examining the case of Gerardo Serrano, his truck and federal asset forfeiture generally — reported that the Treasury and Justice Departments seized more than $5 ... more

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A man, his truck and feds’ ‘profit’

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Federal authorities should not be able to seize assets unless there is “clear and convincing evidence” that a crime was committed. Unfortunately, federal authorities use a looser “preponderance of evidence” standard. The potential for abuse is great.

The Due Process Act would curb what many civil libertarians view as too much power for authorities to seize assets to fund their operations.

A recent Express-News article by Jason Buch — examining the case of Gerardo Serrano, his truck and federal asset forfeiture generally — reported that the Treasury and Justice departments seized more than $5 billion in assets last year.

Serrano’s woes began when he was traveling to Piedras Negras, Mexico, in September 2015. He took a cellphone photo of the tolling booth on the bridge to Piedras Negras. Ordered to delete it, he said he complied, but it went to his iCloud account and the agent asked for the code. He refused.

Agents searched his truck and found a pistol magazine with five .380-caliber rounds. In documents later, authorities said the truck was being used to smuggle “arms and munitions of war.”

Serrano asked to be arrested, believing the agents had to conclude there was intent to commit a crime to do that. He wasn’t arrested. His truck was.

Serrano, who has a concealed weapon permit, said the magazine was left in the truck by mistake. He believes that asset forfeiture was invoked because he argued with the agents about his cellphone.

There was no gun. Yes, agents should stop ammunition from entering Mexico, but five rounds is not precisely an arsenal, and its presence seems to fit with Serrano’s explanation of mistaken transport. It’s called judgment.

Serrano is contesting the seizure.

Asset forfeiture can be a proper tool to stymie organized crime and crime generally. This clearly does not fit that scenario.

There’s some irony here. The U.S. Justice Department is closing its private prisons, and Homeland Security is reviewing its own private facilities. This follows criticism that the profit motive should not be a factor in filling prisons. But that same profit motive — funds for agencies — clearly exists when it comes to federal forfeiture law.

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The Due Process Act is unlikely to be acted upon before the congressional break. It will likely be inserted into a larger justice reform bill. But that legislation is also on shaky legs.

When it returns — if not before — Congress must raise the standard of evidence for forfeitures. In the meantime, return Serrano’s truck.